"Had the framers of those amendments intended them to be limitations on the power of the state governments they would have imitated the framers of the original Constitution, and expressed that intention." John Marshall, Barron v. Baltimore, 1833

Generalized assertions that Marshall was wrong carry little weight. I don't know what "notable faction" of dissenters is referred to. Who were they, what did they write, where can it be found? I am referring to the specific question of the applicability of the Bill of Rights of 1791 to the state governments.

Incorporation is a mess. Incorporation is a mess. Incorporation is a mess. Multiply that by 1000 and you'll figure out what I think about it.

Madison wrote a letter to Jefferson decrying the fact that the Bill of Rights of 1791, as proposed by Congress and as ratified by the states, did not apply to the states. I remember reading the letter years ago when working on my dissertation. I cannot find it now because I no longer have access to the Madison papers. It takes a larger library than is available here at Reagan's alma mater.

Barnett makes a definitive argument that our Constitutions original intent was to protect our individual rights against ALL levels of government, fed/state/local.

From your # 108

" --- Randy Barnett makes a convincing case that the Framers of the 14th Amendment did indeed intend to incorporate the first eight Amendments of the Bill of Rights and apply them against the states.

These are mutually exclusive positions. If the authors and ratifiers of the Bill of Rights of 1791 intended them to apply to the states there would have been no reason to incorporate them through the due process clause of the 14th Amendment.

Barnett is apparently smart enough to hold mutually exclusive and contradictory opinions on the topic.

That the provisions of the Bill of Rights were never thought to apply to the states until they were incorporated in the 20th Century is supported by mountains of historical data.

Just to take one example, state law enforcement often engaged in search and siezures that (if they had been federal officers) would have violated the 4th amendment. Many times the state officers would give the evidence to federal officers to be used in federal court. The Supreme Court eventually stopped federal officers from using the evidence in federal court, but it was used in state courts until Mapp v. Ohio, 1960, incorporated the exclusionary rule.

Historical evidence abounds that states engaged in other practices for decades after the BOR, practices the BOR forbade to the feds. In the area of religion, for example, some states had established churches long after 1791.

Again, the historical record is clear that the Bill of Rights of 1791 did not apply to the state governments until the SC started its highly questionable selective incorporation.

An additional and especially persuasive item of evidence, indeed conclusive in and of itself, as to the intent of the Congress which framed the first eight amendments--that it did not intend them to apply against the States---is this. When considering the first group of amendments, the House of Representatives debated a considerable number of proposed amendments, of which only twelve received final approval by both Senate and House and were referred to the States for ratification (of which only ten were ratified). One which did not receive such final approval was a proposed amendment--adopted by the House on August 17, 1789--designed expressly to prohibit the States from infringing freedom of speech and the press. This was already prohibited to the Federal government under a separate, proposed amendment (which finally became the First Amendment). The fact that the House at first considered it necessary to have the above-noted amendment expressly specifying the States, in order to be applicable against the States, is additional evidence that the ratified amendments were not intended to apply against the States.

Disclaimer:
Opinions posted on Free Republic are those of the individual
posters and do not necessarily represent the opinion of Free Republic or its
management. All materials posted herein are protected by copyright law and the
exemption for fair use of copyrighted works.